SEO Held Liable, Fined In Counterfeiting Case

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A website builder and SEO firm has been held liable in federal court in a case in which it was accused of enabling the sale of counterfeit goods. Bright Builders faces a $770,000 fine for damages in the judgment, handed down in U.S. District Court in South Carolina last week, while its client was only fined $28,000.

The lawsuit was filed by the Roger Cleveland Golf Company, which makes golf clubs and related products, accusing Christopher Prince, the owner of the web site, of selling counterfeit Cleveland clubs. It also contended that Bright Builders helped Prince, and his company, Prince Distribution, to build a web site. This included helping with search engine optimization (SEO) — so that the site would come up on searches for Cleveland’s trademarked terms. Bright Builders denied the charges in a written motion, and hadn’t responded to a request for comment by publication time.

According to the plaintiffs, Bright — like many site hosting companies — provided SEO services, including review of the sites for search engine visibility, a “quick start” for marketing, keyword research, a “tune up” including a “keyword rich title and description,” along with submission of the site to more than 2,500 search engines and directories. The word “Cleveland” was embedded within the site metadata, the plaintiffs say, and the online store featured marketing copy advertising that, “we are your one stop shop for the best COPIED and ORIGINAL golf equipment on the internet.”

Additionally, the plaintiffs said that Bright Builders helped Prince find drop-shippers to provide products to the business. Because of its activities, Cleveland contended that Bright Builders should have known about the counterfeiting activities, and therefore contributed to the liability.

“For Internet Intermediaries like SEOs and web hosts, this should be a cautionary warning,” wrote Christopher Finnerty, a partner at Nelson Mullins Law Firm in Boston who represented Cleveland Golf and its parent company, Srixon. “The jury found that web hosts and SEO’s cannot rely solely on third parties to police their web sites and provide actual notice of counterfeit sales from the brand owners. Even prior to notification from a third party, Internet intermediaries must be proactive to stop infringing sales when they knew or should have known that these illegal sales were occurring through one of the web sites they host.”

Though Bright Builders, along with Prince, have been found liable in a jury trial, it’s unclear exactly what implications this case has for other SEOs or website hosts, in part because of the seeming lack of a vigorous defense. The attorney for Bright Builders submitted a very vague motion arguing that it be dropped as a defendant from the case, denying everything but failing to cite legal principles or provide supporting evidence.

“We don’t have a good sense of how likely it is that other web designers or SEOs/hosts will be sucked into the same liability trap,” writes intellectual property attorney Eric Goldman on his Technology & Marketing blog. “I do think we have some good reason to believe that courts are allergic to the entire ‘copycat’/'replica’ business. Those code-words aren’t fooling anyone.”

Related Topics: Channel: Industry | Legal: Copyright | Legal: Trademarks | Top News


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  • Red_Mud_Rookie

    Well well well…. this is indeed interesting, but one would argue grossly unfair to SEOs. It begs the question, “What about all the printing companies, advertising and marketing agencies, search engines, directories, copywriters… ?” need I go on?
    all of whom have no doubt helped similar businesses sell their products without knowing whether or not they are legit.

    I for one have been helping a company who sells lake balls (golf balls lost in the water hazards) – Does that make me liable because I’m helping them sell products that the owners have not bothered or have no intention of retrieving themselves?

  • Rick Vidallon

    I Googled Bright Builders. YIKES. I don’t have to look past the first page of results to see that this lawsuit is just a small ripple in the splash this company has already made.

  • Marla Hughes

    Red Mud,
    There’s a huge difference between selling scrap or dumpster diving for your thrift shop and selling what you know is counterfeit merchandise.

    From what I read, the judge and jury looked at the website as they would a physical address, from the owners to the marketers. I don’t think the attorney put up a vigorous defense and legal incompetence could be argued for a re-trial IMHO.
    However, looking at the deeper subject of whether the SEO people SHOULD have known that the site was a rip off of Cleveland’s trademark, we’d have to know if the clubs were allowed to be sold in other than Cleveland shops or if retail outlets/stores also sold them. If so, the SEO would be held harmless unless it could be proven by more than keywords that they knew the actions of the website were illegal.
    Pawn shops have to take precautions to keep from selling stolen merchandise, but, even if they’re committing a crime, I don’t know of a case where marketing professionals have been held liable for their actions. Perhaps it’s my lack of knowledge and someone knows of cases on the books. Interesting discussion.

  • houseofcopy

    While I agree that any self-respecting SEO or SEO company should know what the heck their client sells ( I’m not going to blindly accept an online pharmacy site as a client without making sure what they do is legal), this should be a major wake up call to all SEOs, be they a company or freelance, to make sure your contract is DETAILED and SOLID.

    I mean that signed document should absolve you of everything save not following through on a statement of work to be performed.

    Protect yourselves and do your homework.

  • Myron Rosmarin

    I’ve seen this story discussed in a couple of places and it feels to me that the “SEO” angle of this story is being over-played. It seems clear from the articles posted in various places that Bright Builders built, hosted and promoted a website that marketed and distributed counterfeit golf clubs for which they got punished. What about that is of interest to the search marketing profession?

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